Citation Nr: 0034103
Decision Date: 12/29/00 Archive Date: 01/08/01
DOCKET NO. 99-01 970 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for a nervous disorder.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. Hannan, Counsel
REMAND
The appellant served on active duty from May 1961 to February
1966.
This matter originally came before the Board of Veterans'
Appeals (Board) from a June 1998 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in Montgomery, Alabama, that denied entitlement to service
connection for a nervous condition. The appellant was
notified of the RO decision and his appellate rights by
letter dated July 23, 1998. He expressed disagreement with
the June 1998 rating decision in a January 1999 written
statement. Subsequently, the Board found that the appellate
process had commenced and that the appellant was entitled to
a Statement of the Case (SOC) on the issue. See Manlicon v.
West, 12 Vet. App. 238 (1999). Accordingly, the Board
remanded the case to the RO for additional action in July
2000.
On August 7, 2000, the RO sent an SOC to appellant, along
with a notice letter informing him that he needed to file a
formal appeal in order to perfect his appeal. A VA Form 9
was included and the appellant was informed of what he needed
to do in order to complete his appeal, as well as the time
constraints on the completion of his appeal. The appellant's
representative was also provided a copy of the documents sent
to the appellant on August 7, 2000. The veteran's
representative completed and signed a Statement of Accredited
Representative in Appealed Case on October 11, 2000. No
additional statements or submissions pertaining to the
appellant's service connection claim for a nervous condition
were received at the RO.
The steps to be taken to perfect an appeal to the Board
following an adverse determination by an agency of original
jurisdiction are set out fully in statute and regulations.
"Appellate review will be initiated by a Notice of
Disagreement and completed by a substantive appeal after a
Statement of the Case is furnished as prescribed in this
section." 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200; see
also 38 C.F.R. § 20.201 (requirements for notices of
disagreement). "Proper completion and filing of a
Substantive Appeal are the last actions the appellant needs
to take to perfect an appeal." 38 C.F.R. § 20.202. The
notice of disagreement (NOD) and the substantive appeal must
be filed with the activity/office that entered the
determination with which disagreement has been expressed.
38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.300.
After an NOD is filed, an SOC is to be prepared unless the
benefit being sought is granted in full. 38 U.S.C.A.
§ 7105(d)(1). The SOC is to be forwarded to the appellant at
his most recent address of record, with a copy provided to
the representative. 38 C.F.R. § 19.30(a). Thereafter, a
claimant must file the substantive appeal within 60 days from
the date the SOC is mailed or within the remainder of the
one-year time period from the date of mailing of notice of
the initial determination being appealed, whichever ends
later. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.302(b).
In the present case, it does not appear that the appellant
filed a timely substantive appeal with regard to the RO's
June 1998 decision which denied service connection for a
nervous condition. Where a veteran's substantive appeal is
found by the Board to be untimely, and the issue of
timeliness has not yet been addressed by the RO, the proper
course is for the Board to remand the matter to the RO to
allow the veteran to submit evidence and argument on the
question. See, e.g., Marsh v. West, 11 Vet. App. 468 (1998).
See also VAOPGCPREC 9-99 (1999). Furthermore, the United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter Court) has found that for the Board to
decline jurisdiction without first providing a veteran with
notice and an opportunity to be heard would violate due
process rights. See Bernard v. Brown, 4 Vet. App. 384
(1993).
In view of the foregoing, this case is REMANDED for the
following action:
Furnish the appellant a Supplemental
Statement of the Case (SSOC) on the issue
of the timeliness of the substantive
appeal of the June 1998 rating decision
that denied entitlement to service
connection for a nervous disorder. The
SSOC should contain a summary of the
pertinent facts and a summary of the laws
and regulations applicable to the proper
filing of appeals, with appropriate
citations (including 38 C.F.R. §§ 19.34,
20.200, 20.202, 20.203, 20.300, 20.302,
20.303, 20.305). See 38 C.F.R. §§ 19.29,
19.31. Allow an appropriate period of
time for response.
Then, the entire claims folder should be returned to the
Board for further appellate consideration, if in order. The
appellant has the right to submit additional evidence and
argument on the matter that the Board has remanded to the
regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999). The purpose of this REMAND is to fulfill due process
considerations.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
P.M. DILORENZO
Acting Veterans Law Judge
Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 2000), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (2000).